Financially Distressed Companies Turn to Out-of-Court Restructurings to Avoid Bankruptcy

In today’s challenging economic climate, financially distressed companies are increasingly exploring out-of-court restructuring options as a viable alternative to bankruptcy proceedings. These restructuring processes allow companies to recapitalize and reorganize their capital structure without going through the complexities and lengthy timelines associated with bankruptcy. With careful consideration and strategic decision-making, companies can determine the best form of transaction for their specific needs.

One prominent method utilized in out-of-court restructurings is the exchange offer, which combines an offer to exchange existing debt securities with a solicitation of consent to amend the terms of those securities. By amending the debt agreements, companies aim to strip away covenants and events of default, providing greater flexibility in managing their financial obligations. This approach motivates securities holders to participate in the exchange offer, as the existing debt is governed by an agreement that offers limited protection and may not be favorable.

While exchange offers offer various advantages, such as speed, lower costs, uninterrupted business operations, and confidentiality, there are also disadvantages to consider. These include the lack of creditor protection, potential holdouts among various securities classes, difficulties in obtaining financing, and the risk of preference claims. Additionally, burdensome contracts and leases may remain in effect, and certain tax advantages available in bankruptcy may not be present in out-of-court restructurings.

Constituents involved in out-of-court restructurings include the company itself, its stockholders, creditors, and potential investors. The company, along with its advisors, takes the lead in restructuring efforts, although a single large group of creditors may sometimes drive the negotiations. Stockholders, both large and small, play a critical role in the process, and their interests need to be carefully considered. Creditors, divided into various classes based on their claims, are essential constituents whose approval is crucial for the success of any restructuring plan. Potential investors, such as private equity firms or hedge funds, can provide crucial capital and may seek control or a significant equity stake in the company.

Apart from exchange offers, other out-of-court restructuring methods involve debt or equity investment transactions. These transactions can include rights offerings, the issuance of “exploding” preferred stock, or second lien or “exploding” convertible debt. Each of these structures has its own advantages and considerations, depending on the objectives of the parties involved and the existing debt covenants.

Securities law compliance is a significant factor in out-of-court restructurings, as any issuance of securities must either be registered with the Securities and Exchange Commission (SEC) or meet the requirements for exemptions from registration. The process of registration can be time-consuming and costly, leading companies to seek exemptions under federal securities laws. However, careful attention must be given to compliance with antifraud provisions and exemptions available under the Securities Act of 1933.

In summary, financially distressed companies face a range of challenges and considerations when opting for out-of-court restructurings. These alternatives to bankruptcy offer benefits such as speed, lower costs, confidentiality, and the preservation of business operations. However, they also come with potential disadvantages and legal complexities that need to be navigated with the guidance of experienced advisors. By carefully assessing their specific circumstances, companies can make informed decisions and pursue the most suitable restructuring path to secure their financial stability and ensure a viable future.

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